Tuesday, March 29, 2005

Juan Cole and Schiavo

Juan Cole thinks that those who want to preserve Terri Schiavo's life are akin to Muslim theocrats. Here are his thoughts:

The Schiavo Case and the Islamization of the Republican Party

The cynical use by the US Republican Party of the Terri Schiavo case repeats, whether deliberately or accidentally, the tactics of Muslim fundamentalists and theocrats in places like Egypt and Pakistan.

Already we have a misleading omission: Plenty of Democrats and disability-rights groups supported the congressional bill that granted Schiavo an extra day in federal court. (And though it's probably no use, I'd like to protest the too-common use of the word "cynical" to mean "evoking feelings of cynicism in other people.")

These tactics involve a disturbing tendency to make private, intimate decisions matters of public interest and then to bring the courts and the legislature to bear on them. President George W. Bush and Republican congressional leaders like Tom Delay have taken us one step closer to theocracy on the Muslim Brotherhood model.

Wow. That's quite an accusation. But let's clear up yet another error before seeing how Juan Cole plans to substantiate his thesis: It is quite misleading to suggest that Congress was "mak[ing] private, intimate decisions matters of public interest and then [bringing] the courts and legislature to bear on them." The Schiavo case had already been litigated numerous times, and was the subject of actions by the Florida legislature. The Schiavo case was an issue for legislatures and courts long before the Congressional Republicans even heard of it.

The Muslim fundamentalists use a provision of Islamic law called "bringing to account" (hisba). As Al-Ahram weekly notes, "Hisba signifies a case filed by an individual on behalf of society when the plaintiff feels that great harm has been done to religion." Hisba is a medieval idea that had all but lapsed when the fundamentalists brought it back in the 1970s and 1980s.

The relevance of this is not established. In no stage of the Schiavo case has any "individual" been able to file a lawsuit "on behalf of society" to vindicate the harm "done to religion.

In this practice, any individual can use the courts to intervene in the private lives of others. Among the more famous cases of such interference is that of Nasr Hamid Abu Zaid in Egypt. A respected modern scholar of Koranic studies, Abu Zaid argued that, contrary to medieval interpretations of Islamic law, women and men should receive equal inheritance shares. (Medieval Islamic law granted women only half the inheritance shares of their brothers). Abu Zaid was accused of sacrilege. Then the allegation of sacrilege was used as a basis on which the fundamentalists sought to have the courts forcibly divorce him from his wife.

Abu Zaid's wife loved her husband. She did not want to be divorced. But the fundamentalists went before the court and said, she is a Muslim, and he is an infidel, and no Muslim woman may be married to an infidel. They represented their efforts as being on behalf of the Islamic religion, which had an interest in seeing to it that heretics like Abu Zaid could not remain married to a Muslim woman. In 1995 the hisba court actually found against them. They fled to Europe, and ultimately settled in Holland.

Cole's comparison is irrelevant. The Abu Zaid case: A stranger is allowed to file a lawsuit based purely on his personal religious feelings ("sacrilege") in order to forcibly divorce a man from his wife. The Schiavo case: Allowing the parents (not a stranger) to seek rehearing of their brain-damaged daughter's claims in federal court before the daughter's estranged husband can proceed to have her starved to death. There are no similarities between those two cases whatsoever, except in the highly abstract sense that religious motivations might have played a role in forming some people's beliefs about life/death issues (just as religious beliefs informed some people's beliefs about civil rights, abolition, and other important moral issues).

One of the most objectionable features of this fundamentalist tactic is that persons without standing can interfere in private affairs. Perfect strangers can file a case about your marriage, because they represent themselves as defending a public interest (the upholding of religion and morality).

And again, nothing about the congressional legislation allowed "perfect strangers" to "file a case" about Terri Schiavo. Her own parents' legal interests are at issue here, not the general public's.

But the most frightening thing about the entire affair is that public figures like congressmen inserted themselves into the case in order to uphold religious strictures. The lawyer arguing against the husband let the cat out of the bag, as reported by the NYT: ' The lawyer, David Gibbs, also said Ms. Schiavo's religious beliefs as a Roman Catholic were being infringed because Pope John Paul II has deemed it unacceptable for Catholics to refuse food and water. "We are now in a position where a court has ordered her to disobey her church and even jeopardize her eternal soul," Mr. Gibbs said. '

In other words, the United States Congress acted in part on behalf of the Roman Catholic church. Both of these public bodies interfered in the private affairs of the Schiavos, just as the fundamentalist Egyptian, Nabih El-Wahsh, tried to interfere in the marriage of Nawal El Saadawi.

This is ridiculous. Even if you are quoting statements from legislators themselves, it is a very risky enterprise to ascribe a motive to a legislature.1 But here, the only evidence is one statement made by one citizen after Congress passed the bill in question. It sheds absolutely no light on Congress's intent. Indeed, anyone who has been following the Schiavo case knows that the parents' lawyers have been trying every tactic and argument that they can imagine, hoping that something will stick. So the lawyer's statement probably isn't even a good indication of his own motivations. The allegation that Congress was acting "on behalf of the Roman Catholic Church" is even more absurd than the old fear that John F. Kennedy was taking orders from the Pope.

Republican Hisba will have the same effect in the United States that it does in the Middle East. It will reduce the rights of the individual in favor of the rights of religious and political elites to control individuals. Ayatollah Delay isn't different from his counterparts in Iran.

This is complete hyperbole. It doesn't even make sense to describe the Schiavo case as involving "religious and political elites" controlling "individuals." Schiavo is a brain-damaged woman whose estranged husband and parents disagree over whether she should be starved to death. Up until very recently, all of the relevant "political elites" (esp. judges) favored the husband. Congress -- including a lot of Democrats -- happened to favor giving the parents an extra day in court. No matter who "wins" (and it looks like it will be the husband), Schiavo's fate has always been controlled by someone else who has won the approval of "political elites."

For while it is possible to discern the objective "purpose" of a statute (i.e., the public good at which its provisions appear to be directed), or even the formal motivation for a statute where that is explicitly set forth (as it was, to no avail, here), discerning the subjective motivation of those enacting the statute is, to be honest, almost always an impossible task. The number of possible [p637] motivations, to begin with, is not binary, or indeed even finite. In the present case, for example, a particular legislator need not have voted for the Act either because he wanted to foster religion or because he wanted to improve education. He may have thought the bill would provide jobs for his district, or may have wanted to make amends with a faction of his party he had alienated on another vote, or he may have been a close friend of the bill's sponsor, or he may have been repaying a favor he owed the majority leader, or he may have hoped the Governor would appreciate his vote and make a fund-raising appearance for him, or he may have been pressured to vote for a bill he disliked by a wealthy contributor or by a flood of constituent mail, or he may have been seeking favorable publicity, or he may have been reluctant to hurt the feelings of a loyal staff member who worked on the bill, or he may have been settling an old score with a legislator who opposed the bill, or he may have been mad at his wife, who opposed the bill, or he may have been intoxicated and utterly unmotivated when the vote was called, or he may have accidentally voted "yes" instead of "no," or, of course, he may have had (and very likely did have) a combination of some of the above and many other motivations. To look for the sole purpose of even a single legislator is probably to look for something that does not exist.

Putting that problem aside, however, where ought we to look for the individual legislator's purpose? We cannot, of course, assume that every member present (if, as is unlikely, we know who or even how many they were) agreed with the motivation expressed in a particular legislator's preenactment floor or committee statement. Quite obviously, "[w]hat motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it." United States v. O'Brien, 391 U.S. 367, 384 (1968). Can we assume, then, that they all agree with the motivation expressed in the staff-prepared committee reports they might have read -- even though we are unwilling to [p638] assume that they agreed with the motivation expressed in the very statute that they voted for? Should we consider postenactment floor statements? Or postenactment testimony from legislators, obtained expressly for the lawsuit? Should we consider media reports on the realities of the legislative bargaining? All of these sources, of course, are eminently manipulable. Legislative histories can be contrived and sanitized, favorable media coverage orchestrated, and postenactment recollections conveniently distorted. Perhaps most valuable of all would be more objective indications -- for example, evidence regarding the individual legislators' religious affiliations. And if that, why not evidence regarding the fervor or tepidity of their beliefs?

Having achieved, through these simple means, an assessment of what individual legislators intended, we must still confront the question (yet to be addressed in any of our cases) how many of them must have the invalidating intent. If a state senate approves a bill by vote of 26 to 25, and only one of the 26 intended solely to advance religion, is the law unconstitutional? What if 13 of the 26 had that intent? What if 3 of the 26 had the impermissible intent, but 3 of the 25 voting against the bill were motivated by religious hostility, or were simply attempting to "balance" the votes of their impermissibly motivated colleagues? Or is it possible that the intent of the bill's sponsor is alone enough to invalidate it -- on a theory, perhaps, that even though everyone else's intent was pure, what they produced was the fruit of a forbidden tree?

Because there are no good answers to these questions, this Court has recognized from Chief Justice Marshall, see Fletcher v. Peck, 6 Cranch 87, 130 (1810), to Chief Justice Warren, United States v. O'Brien, supra, at 383-384, that determining the subjective intent of legislators is a perilous enterprise.

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